Citation Nr: 1707635
Decision Date: 03/13/17 Archive Date: 03/21/17
DOCKET NO. 13-06 154A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York
THE ISSUES
1. Entitlement to a rating in excess of 10 percent prior to May 17, 2013 and
20 percent thereafter for lumbosacral strain, status post-surgery for lumbar cyst, laminectomy, L4-L5.
2. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the lower right extremity.
3. Entitlement to an initial rating in excess of 10 percent prior to May 17, 2013 and 20 percent thereafter for radiculopathy of the lower left extremity.
4. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
C. Jones, Associate Counsel
INTRODUCTION
The Veteran served on active duty from November 1990 to March 1995.
These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Buffalo, New York, which, granted service connection for radiculopathy of the lower right extremity and assigned a 20 percent rating, effective February 6, 2012, and for radiculopathy of the lower left extremity for which a 10 percent disability rating was assigned, effective February 6, 2012. The rating decision also denied entitlement to a rating in excess of 10 percent for the Veteran's service-connected lumbar spine disability.
Thereafter, in a January 2014 rating decision, the RO increased the rating for the appellant's lumbar spine disability to 20 percent disabling, effective May 17, 2013. Additionally, the rating for radiculopathy of the lower left extremity was increased to 20 percent disabling, effective May 17, 2013
The issue of entitlement to SMC is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. Prior to May 17, 2013, the Veteran's lumber spine disability was manifested by forward flexion to 65 degrees with evidence of pain at 55 degrees, however, the evidence does not show forward flexion limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.
2. As of May 17, 2013, the Veteran's lumbar spine disability has been manifested by reduced range of motion, with forward flexion to 31 degrees with evidence of pain at 30 degrees, but not by unfavorable ankylosis of the entire lumbar spine or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.
3. Throughout the rating period on appeal, the Veteran's radiculopathy of the lower right extremity has been moderate in nature.
4. Prior to May 17, 2013, the Veteran's radiculopathy of the lower left extremity was mild in nature.
5. As of May 17, 2013, the Veteran's radiculopathy of the lower left extremity has been moderate in nature.
CONCLUSIONS OF LAW
1. The criteria for a 20 percent rating, but no higher, for the Veteran's lumbar spine disability have been met prior to May 17, 2013. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, Part 4, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243 (2016).
2. The criteria for a 40 percent rating, but no higher, for the Veteran's lumbar spine disability have been met as of May 17, 2013. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, Part 4, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243 (2016).
3. The criteria for an initial rating in excess of 20 percent for radiculopathy of the lower right extremity have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2016).
4. The criteria for an initial rating in excess of 10 percent prior to May 17, 2013 and 20 percent thereafter for radiculopathy of the lower left extremity have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duty to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016).
The VA's duty to notify was satisfied through a letter dated in May 2012, which fully addressed all notice elements. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
Service treatment records and available post-service treatment records have been associated with claims file. The Board observes that in the report of the May 2013 VA examination, it was documented that the Veteran received private treatment for his lumbar spine disability. However, the treatment records have not been retrieved. Notwithstanding, the Board observes that in the May 2012 notice letter, the RO requested that the appellant send any treatment records related to his condition, or alternatively, to complete and return the Authorization and Consent to Release Information form in order for the RO to obtain the records. A review of the evidence does not indicate that the Veteran provided the appropriate form to obtain the private treatment records, nor did he submit the records for consideration by the RO. Thus, the Board concludes that the Veteran has not sufficiently identified any additional records that should be retrieved. See 38 C.F.R. § 3.159(c)(1)(i) (stating that the claimant must provide enough information to identify and locate the existing records, including the person, company, agency, or other custodian holding the records; the approximate time frame covered by the records). Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied.
The Veteran was provided VA examinations in August 2012 and May 2013. The examinations are adequate for the purposes of the claims adjudicated herein, as they were based on consideration of the Veteran's pertinent medical history and described the current severity of the Veteran's disabilities. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).
Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.
Legal Criteria
Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
In the case of an initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). However, where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown,
7 Vet. App. 55, 58 (1994).
Additionally, the Board must consider whether the disability has undergone varying and distinct levels of severity while the claim has been pending and provide staged ratings during those periods. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).
When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).
When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. §§ 4.7, 4.21. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.
I. Lumbar Spine Disability
The Veteran's lumbar spine disability has been rated under Diagnostic Code 5237 for lumbosacral strain.
Under the General Rating Formula, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, unfavorable ankylosis of the entire spine warrants a 100 percent rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5237.
Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Id.
Forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent rating. Id.
Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis warrants a 20 percent rating. Id.
Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height warrants a
10 percent rating. Id.
Unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5).
Under the General Rating Formula, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under appropriate diagnostic codes. Id. at Note (1).
For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.59 (2016).
Pain without accompanying functional limitation cannot serve as the basis for a higher rating. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). It is, however, VA's policy to grant at least the minimal compensable rating for actually painful motion. 38 C.F.R. § 4.59.
Factual Background
Turning to the evidence, the Veteran was provided a VA examination in August 2012. At the time of the examination, the Veteran reported that he had periods of severe flare-ups of his lower back condition on average of two to three times a day lasting on average approximately half an hour. During that time, he was in severe pain and limitations.
Range of motion testing revealed forward flexion to 65 degrees with evidence of pain at 55 degrees; extension to 20 degrees with evidence of pain at 10 degrees; right and left lateral flexion to 25 degrees with evidence of pain at 15 degrees; and right and left lateral rotation to 30 degrees with evidence of pain at 20 degrees. The Veteran was unable to perform repetitive testing due to pain and safety. Notwithstanding, the examiner noted that the appellant did not have additional limitation of the lumbar spine following repetitive testing.
It was noted that the Veteran had functional loss and/or functional impairment with contributing factors of less movement than normal and pain on movement. The Veteran had localized tenderness or pain to palpitation of joints and/or soft tissue of the thoracolumbar spine. He did not have guarding or muscle spasms of the thoracolumbar spine. Muscle and reflex test results were normal. Sensory examination was decreased in the right foot with normal findings for the remaining results. The examination findings revealed radiculopathy, which the examiner determined was moderate in the right lower extremity and mild in the left lower extremity. There were no other neurologic abnormalities. There was also no finding of intervertebral disc syndrome. It was noted that the Veteran had scars associated with this lumbar spine disability, but the scars were not painful and/or unstable, nor was the total area of all related scars greater than 39 square centimeters.
The examiner determined that the appellant's back condition impacted his ability to work. The Veteran had limitations, to include sitting up to 60 minutes, driving up to 60 minutes and with bending, lifting, and twisting. It was reported that the Veteran was employed as a designer and in manufacturing.
In the Veteran's notice of disagreement received in September 2012, he reported that he had pain across the entire range of motion of this lumbar spine, which severely limits his mobility and ability to perform the simplest of everyday tasks, including, but not limited to, personal hygiene for which he needs assistance. He noted that he could not put on his own pants nor tie his shoes. He also stated that he is unable to engage in any physical play or sports with his son and that he cannot sit for more than 15 to 20 minutes before his condition forces him to change positions.
The Veteran underwent an additional VA examination in May 2013. At the time of the examination, the appellant reported flare-ups that caused daily/hourly pain.
Range of motion testing revealed forward flexion to 31 degrees with evidence of pain at 30 degrees; extension to 10 degrees with evidence of pain at 8 degrees; right lateral flexion to 17 degrees with evidence of pain at 17 degrees; left lateral flexion to 35 degrees with no evidence of pain; right lateral rotation to 10 degrees with evidence of pain at 10 degrees; and left lateral rotation to 15 degrees with no evidence of pain. It was noted that the appellant was in too much pain to perform repetitive-use testing. However, the examiner opined that the Veteran did not have additional limitation in range of motion of the lumbar spine following repetitive testing.
The examiner reported that the Veteran had functional loss and/or functional impairment of the lumbar after repetitive use. The contributing factors were less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, instability, and interference with sitting, standing, and/or weightbearing. It was noted that the Veteran had to change from sitting to standing due to pain. The Veteran had localized tenderness or pain to palpitation of joints and/or soft tissue of the thoracolumbar spine. There was no guarding or muscle spasm of the lumbar spine.
Muscle strength testing revealed active movement against some resistance. There was no muscle atrophy and reflex examination was normal. Sensory examination revealed decreased sensation to light touch. It was noted that the appellant could not feel on the dorsum of both feet. Straight let raising test was positive for the left and right legs. Following examination, the examiner noted that the appellant had moderate radiculopathy in both the right and left lower extremities. With regard to other neurologic abnormalities, the examiner noted that there was no incontinence of urine or stool, but the appellant had numbness of the buttocks daily with radiation in the legs.
The examiner reported that that the Veteran had intervertebral disc syndrome (IVDS) with incapacitating episodes less than 1 week in the past 12 months. It was noted that the appellant had a scar related to his lumbar spine disability, however, it was not painful and/or unstable, and the total area of the related scar was not greater than 39 square centimeters. It was documented that he Veteran has a desk job and has to go out to the shop to do manual labor. The report also notes that he wears a back brace all the time to protect his lower back, especially when lifting.
The examiner opined that the appellant's back pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time. However, the examiner indicated that he was unable to express the degree of additional range of motion loss due to pain on use or during flare-ups without resorting to speculation.
Analysis
After a review of the evidence, the Board finds that a 20 percent rating is warranted prior to May 17, 2013. In this regard, the Board notes that during the August 2012 VA examination, the appellant had forward flexion to 65 degrees. However, there was evidence of pain at 55 degrees. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Moreover, the Veteran reported flare-ups of symptomatology. In this regard, he reported flare-ups on average of 2-3 times a day lasting on average a half hour during which he is in severe pain and limited. Thus, resolving all doubt in favor of the Veteran in light of the forward flexion less than 60 degrees and the daily reported flare-ups, the Board finds that a 20 percent rating is warranted during this stage of the appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5237.
Consideration has been given to assigning a higher rating; however, at no time during this stage of appeal has range of motion been limited to 30 degrees or less. Moreover, there was no finding of favorable ankylosis or incapacitating episodes to a level that would warrant a rating greater than 20 percent. See, e.g., May 2013 VA examination report. As such, the next-higher 40 percent rating is not warranted.
The Board recognizes that the August 2012 VA examination does not contain an estimate of additional functional limitation as a result of flare-ups. Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). However, that examination is now 5 years old. The Board finds it highly unlikely that an examination at present could provide any probative evidence as to the limitation of flare-ups that occurred approximately five years ago. Rather, it would appear that an attempt to do so would only delay the claim, with no benefit to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). The same line of reasoning applies to any deficiencies in that examination and the May 2013 VA examination as it relates to Correia v. McDonald, 28 Vet. App. 158, 168 (2016), holding that examination findings should address both passive and active motion, as well as both weight-bearing and non-weight-bearing findings. In the end, the Board finds that the Veteran did not raise any argument regarding flare-ups or the impact of testing in as noted in Correia. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015), cert. denied, 137 S. Ct. 33, 196 L. Ed. 2d 25 (2016) ("A veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution."); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying the exhaustion doctrine to uphold the Court's determination not to consider a duty to assist argument that the veteran had not raised before the Board).
The Board also finds that a 40 percent rating is warranted as of May 17, 2014. In so finding, in the report of the May 2013 VA examination, it was noted that the Veteran had forward flexion to 31 degrees with evidence of pain at 30 degrees. Under such circumstances, and resolving all doubt in favor of the Veteran, the Board concludes that a 40 percent rating is warranted for the Veteran's lumbar spine disability as of May 17, 2013. 38 C.F.R. § 4.71a, Diagnostic Code 5237.
Consideration has been given to assigning a higher rating; however there is no objective finding of unfavorable ankylosis of the lumbar spine to warrant the next-higher 50 percent rating. The Board notes that the May 2013 VA examiner concluded that providing an opinion regarding functional loss during flare-ups would be speculative, but failed to provide a rationale. However, the next-higher rating is not predicated on degree of lost motion, but rather on ankylosis. Thus, such information would not have enabled a higher evaluation here.
The Board has considered all potentially applicable diagnostic codes in accordance with Schafrath v. Derwinski, 1 Vet. App. 589 (1991), but the Veteran's lumbar spine disability could not receive a higher rating under an analogous diagnostic code. See 38 C.F.R. § 4.115 (b). Specifically, the Board observes that the Veteran was diagnosed with IVDS during the May 2013 VA examination, however there were no incapacitating episodes having a duration of at least 6 weeks during the past 12 month. Thus, a higher rating is not warranted under the criteria for IVDS. 38 C.F.R. § 4.71a, Diagnostic Code 5243.
The Board acknowledges the appellant's assertion that his lumbar spine disability is a neurologic condition and should be rated under Diagnostic Code 8024 for syringomyelia. See VBMS Correspondence, received 04/16/2013; see also VBMS VA 9 Appeal to Board of Appeals, received 02/21/2014. However, the Board finds that the symptoms associated with the appellant's lumbar spine disability, which include limitation of motion and radiating pain to the lower extremities, are appropriately rated under separate diagnostic codes. Importantly, the diagnostic codes applied herein consider limitation in range of motion and radicular pain, discussed below, caused by the service-connected lumbar spine disability.
The rating formula for the spine provides separate ratings for neurologic manifestations of the back disability. As discussed below, service connection for radiculopathy of the lower extremities has also been granted. No additional neurologic abnormalities have been found. Thus, the Board finds that an additional rating(s) for a neurologic abnormality is not warranted.
The Board notes that the Veteran has scars as result of a surgical procedure for his lumbar spine disability. However, the scars were not found to be painful or unstable and did not cover an area or areas of at least 6 square inches. See 38 C.F.R. § 4.118, Diagnostic Code 7801. Therefore a separate rating for lumbar spine scars is not warranted.
In sum, the Board finds that the criteria of a 20 percent rating prior to May 17, 2013 and 40 percent thereafter for the Veteran's lumbar spine disability have been met. The benefit of the doubt rule has been applied where appropriate. 38 C.F.R. § 4.21.
II. Radiculopathy of the Lower Extremities
The Veteran's service-connected radiculopathy of the lower extremities has been rated under Diagnostic Code 8520 for paralysis for the sciatic nerve. 38 C.F.R. § 4.124a (2016).
Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent evaluation is warranted for moderate incomplete paralysis of the sciatic nerve. Moderately severe and severe incomplete paralysis of the sciatic nerve is rated at 40 and 60 percent disability, respectively. Severe incomplete paralysis is characterized by marked muscular atrophy. 38 C.F.R. § 4.124a.
The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. See "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. Id.
The words "mild," "moderate," and "severe" are not defined in the VA Schedule for Ratings Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2016). It should also be noted that use of such terminology by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. § 4.2, 4.6 (2016).
Factual Background
As previously noted, the Veteran underwent a VA examination in August 2012. The Veteran had normal strength and reflex testing. Sensory examination revealed normal findings for the upper anterior thigh, the thigh/knee, and lower leg/ankle on both the right and left lower extremities. Although examination of the foot/toes of the left lower extremity was normal, they were decreased on the right lower extremity. Straight leg raising test was negative. Radiculopathy was found on examination, which was manifested by moderate intermittent pain of the right and left lower extremities, moderate paresthesias and/or dysesthesias of the right lower extremity, and moderate numbness of the right lower extremity. The examiner determined that the severity of the Veteran's radiculopathy was moderate on the right and mild on the left.
In a statement received in March 2013, the appellant reported that he experienced chronic severe pain and weakness in his left leg and had been experiencing painful muscle spasms. There was also periodic numbness and tingling sensations of both legs. On occasion, he experienced excruciating "deep blinding pain," to the point of nausea in the left buttocks and thigh, which rendered him unable to move at all.
During the May 2013 VA examination, muscle strength testing revealed active movement against gravity. Reflex examination was normal. Sensory examination results showed decreased sensation in both the right and left lower extremities. Straight let test raising test was positive. Radiculopathy was again found on examination, which was manifested by moderate constant pain, severe intermittent pain, moderate paresthesias and/or dysesthesias, and severe numbness. The examiner determined that the overall severity of the Veteran's radiculopathy was moderate.
Analysis
After a review of the evidence, the Board finds that a rating in excess of 20 percent for the Veteran's radiculopathy of the lower right extremity is not warranted for any portion of the rating period on appeal. Based on the evidence, the Veteran's symptoms do not more nearly approximate to a "moderately severe" level. Notably, the August 2012 and May 2013 VA examiners determined that the Veteran's radiculopathy was moderate in nature. This was based on signs and symptoms of pain, numbness, and paresthesias. As such, the next-higher 40 percent rating is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8520.
The Board also finds that a rating in excess of 10 percent prior to May 17, 2013 and 20 percent thereafter for the Veteran's radiculopathy of the lower left extremity is not warranted.
Prior to May 17, 2013, the Veteran's radiculopathy of the lower left extremity was determined to be mild in nature. Notably, during the August 2012 VA examination, the appellant's radiculopathy of the lower left extremity was manifested by moderate intermittent pain. The examiner opined that the appellant's radiculopathy of the lower left extremity was mild in nature. Thus, a rating in excess of 10 percent for radiculopathy of the lower left extremity is not warranted at any time prior to May 17, 2013. Id.
As of May 17, 2013, the Veteran's radiculopathy of the lower left extremity has been manifested by symptoms described as moderate in nature. In this regard, the May 2013 VA examiner opined that the disability was manifested by moderate constant pain, severe intermittent pain, moderate paresthesias and/or dysesthesias, and severe numbness. The examiner determined that the overall severity of the appellant's radiculopathy of the lower left extremity was moderate. The evidence does not suggest that the appellant's radiculopathy of the lower left extremity was moderately severe. As such, the next-higher 40 percent rating is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8520.
The Board acknowledges the Veteran's statement regarding chronic severe pain and weakness in his left leg and painful muscle spasms with periodic numbness and tingling sensations of both legs. While competent and credible, the Board finds that such evidence is outweighed by the competent medical evidence, to include the 2012 and 2013 VA examination reports. Both of these examinations were conducted by physician assistants, who have been medically trained. Additionally, the reports of these examinations reflects that objective sensory and reflex testing was accomplished. In light of these factors, the Board finds that the Veteran's statements are outweighed.
In sum, a rating in excess of 20 percent for radiculopathy of the lower right extremity is not warranted. Further, a rating in excess of 10 percent prior to May 17, 2013 and 20 percent thereafter is not warranted for radiculopathy of the lower left extremity. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).
Extraschedular Consideration
The Board has also considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). However, this case does not present such an exceptional or unusual disability picture that it would be impracticable to apply the schedular standards, and referral is unnecessary. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Rather, the manifestations of the Veteran's lumbar spine disability and radiculopathy of the lower extremities, such as pain, reduced range of motion, and mild radicular symptoms - such as paresthesias and numbness - are fully considered by the rating criteria. Thus, referral for consideration of an extra-schedular disability rating is not necessary at this time. See Thun, 22 Vet. App. at 115-16.
The Board notes that under Johnson v. McDonald, 762 F.3d 1362 (2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, the Veteran has not asserted, nor is it reasonably raised by the record, that there is a collective impact of his service-connected disabilities. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). Therefore, a remand for referral for extraschedular consideration on a collective basis is not warranted.
ORDER
Entitlement to a 20 percent rating, but no higher, for lumbosacral strain, status post-surgery for lumbar cyst, laminectomy, L4-L5 prior to May 17, 2013 is granted, effective February 6, 2012.
Entitlement to a 40 percent rating, but no higher, for lumbosacral strain, status post-surgery for lumbar cyst, laminectomy, L4-L5 is granted, effective May 17, 2013.
Entitlement to an initial rating in excess of 20 percent for radiculopathy of the lower right extremity is denied.
Entitlement to an initial rating in excess of 10 percent prior to May 17, 2013 and 20 percent thereafter for radiculopathy of the lower left extremity is denied.
REMAND
As detailed herein, in the Veteran's notice of disagreement received in September 2012, he indicated that his lumbar spine disability severely limits his mobility and ability to perform the simplest of everyday tasks, including, but not limited to, personal hygiene for which he needs assistance. He noted that he could not put on his own pants nor tie his shoes. See VBMS VA21-4138 Statement in Support of Claim, received 09/20/2012. In the appellate brief submitted by the appellant's representative, she asserted that the Veteran was in need of permanent aid and attendance. VBMS Appellate Brief, received 12/19/2016. Accordingly, the Board finds that the issue of entitlement to SMC based on the need for aid and attendance is reasonably raised by the record. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (stating that the issue of entitlement to SMC is part and parcel of a claim for increased compensation and does not require submission of a separate claim); 38 C.F.R. § 3.155(d)(2) (2016). To date, the issue has not been developed by the AOJ. Thus, on remand the AOJ should undertake all appropriate development and then adjudicate the Veteran's SMC claim.
Accordingly, the case is REMANDED for the following actions:
1. Provide the Veteran with appropriate notice of VA's duties to notify and assist. Particularly, the Veteran should be properly notified of how to substantiate a claim for entitlement to special monthly compensation for aid and attendance due to service-connected disabilities.
2. Then, conduct any further development of the special monthly compensation claim deemed necessary, to include obtaining medical examinations or opinions.
3. Adjudicate the claim of entitlement to SMC. If the benefit sought on appeal is not granted, a supplemental statement of the case should be furnished to the Veteran and his representative and they should be afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
Paul Sorisio
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs